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Mr. CANADY. Professor Durham

STATEMENT OF W. COLE DURHAM, JR., BRIGHAM YOUNG

UNIVERSITY LAW SCHOOL Mr. DURHAM. Thank you. It is a great honor for me to address this body today on legislation vital to protecting one of our preeminent liberties: religious freedom. I have spent much of the past decade working in support of this great principle both in my home State of Utah and at the Federal level, work which underscores my sense that we are dealing with one of the bedrock principles of any just society.

It is a true tragedy that some of the most fundamental problems arise in this area, and some people seem to think that they can't be dealt with at the Federal level. I believe that the proposed law is measured, that it does follow what has been done in other areas. For example, it involves valid assertions of the commerce and spending powers.

I also want to focus primarily on the land use issues. I think I must have misheard Marci Hamilton. I thought she said land use is the last bastion of liberty. I cannot believe that. I have to say that I must have misheard her.

Mr. CANADY. My ears heard the same thing with the same response on my part.

Mr. DURHAM. Maybe she misspoke, but certainly anyone who has been in any of these processes I know often have questions and problems with that.

One of my fundamental roles in this hearing is to draw together anecdotes cases—on land use planning. There is a reason that we deal with anecdotes in this area, and that is that every piece of land is different; land is unique. And yet there are recurring kinds of problems.

A year or so ago when we were preparing the amicus briefs in the Boerne case, I along with some other colleagues pulled together all of the reported cases that we could find regarding land use and religious freedom. We tabulated them and simply looked at what happened. The result is not a scientific study in the strict sense. Frankly, I don't know how one would assemble a scientific universe of such cases. Instead, we simply tried to get all of the reported cases. When you look at them, you see an overwhelming pattern of discrimination.

This, of course, goes to the section 5 issue and section 5 support for the land use provisions of Religious Protection Act.

Let me just summarize very briefly what the overall results are. I am skipping over another study that was done by DePaul University that looks at the scope and the range of land uses that are done by churches throughout the country. This was a survey of about 300 major denominations and what their land use patterns

are.

But focusing just on this collection of data about the actual cases, we compared the treatment received by smaller religious groups. This is a continuum, but we took those with 1.5 percent of the population or less and we compared those with the treatment that is received by larger religious groups. Minority religions that fall in the category of having less than 1.5 percent of the population represent about 9 percent of the total population of the United States.

Mr. SCOTT. What percent?

Mr. DURHAM. About 9 percent. These small groups represent only 9 percent of the population, and yet they were involved in over 49 percent of the cases regarding the right to locate buildings at a particular site and over 33 percent of the cases seeking approval of accessory uses.

When we did the study, you couldn't exactly tell which kind of denomination was involved in each case. If the case name is “Roman Catholic diocese such and such," you know that it is Catholic, but some of the others are not so obvious. So there were a number of cases that are unclassified or are from unascertainable denominations. These unclassified cases are likely also to be in the category of small religious groups (with less than 1.5 percent of the population).

It turns out that the disproportionate burden becomes even more distressing when these cases are taken into account. If these are counted in, over 68 percent of the reported location cases, and over 50 percent of the accessory use cases involve smaller religious groups.

There may be some imperfections in the data, but there could be substantial error without disturbing the result. The point is this portrays a picture of significant recurring discrimination.

I think, as Mr. Mauck said, we are just seeing the tip of the iceberg. I can walk through a number of cases, as my testimony does, and you see churches being driven from pillar to post seeking place after place simply in order to find a place to worship, and this is, in my view, unconscionable.

Now, it is true that there are all sorts of planning reasons that one can give for such results. I want to say that most of the planning people in this country act in good faith and so forth, but I think that they end up suffering from what I call “secular blindness.” They are often more concerned about some relatively minor concern about aesthetics and the like than they are with responding religious freedom. As important and valuable as these concerns are, they cannot outweigh the value of religion and religious freedom in our society. It is vital to adopt a law like the Religious Liberty Protection Act to deal with these things.

In conclusion, I would simply underscore what was said at another point in my written testimony with respect to the Commerce Clause issue. Commerce issues are particularly obvious in the land use area. Religious use of land has all kinds of impacts on commerce, and the impacts are clearly substantial. Religious uses are directly burdened by the land use decisions, and it is perfectly permissible for Congress to exercise its power to deregulate this area that is so vital to exercise one of the most fundamental freedoms in the world.

Thank you.
Mr. CANADY. Thank you, Professor.
[The prepared statement of Mr. Durham follows:)

PREPARED STATEMENT OF W. COLE DURHAM, JR., BRIGHAM YOUNG UNIVERSITY LAW

SCHOOL This statement is submitted by Professor Durham in his personal capacity, and is not made on behalf of any organizations or institutions with which he is affiliated.

It is a great honor for me to address this body today on legislation vital to protecting one of our preeminent liberties: religious freedom. I have spent much of the past decade working in support of this great principle: in my home state of Utah, at the federal level, and as a comparative law expert in many of the countries emerging from the yoke of communism. Experience in all these contexts has reaffirmed my conviction, in setting after setting, that religious freedom is one of the bedrock principles of any just human society. As Madison rightly argued over two centuries ago in his famous Memorial and Remonstrance, religious freedom "is in its nature an unalienable right” because it relates to duties that are "precedent, both in order of time and in degree of obligation, to the claims of Civil Society.” 1

While this hearing rightly focuses on issues of United States constitutional law, it is worth remembering that the principle of religious freedom is deeper and more absolute than any constitution. The Universal Declaration of Human Rights, whose fiftieth anniversary is celebrated this year, clearly recognized (as did our founding fathers) that religious freedom is not a right conferred on individuals by states; it is a right possessed by everyone simply by virtue of being human. Our Constitution is hallowed in no small part because it was one of the first great charters of human history to protect the deeper principle of religious freedom. Moreover, our constitutional history as a people remains impressive because of ongoing efforts to protect this cherished liberty. The legislation we are discussing today, if enacted, will be part of our generation's elaboration of the American heritage of religious freedom. I. GENERAL CONSIDERATIONS CALLING FOR ADOPTION OF THE RELIGIOUS LIBERTY

PROTECTION ACT Congressional action is vital because religious freedom faces unique challenges at this juncture in our history. These challenges are not limited to the fact that the United States Supreme Court has radically and unnecessarily narrowed the scope of religious freedom protections as traditionally understood in this country. They flow from the pervasiveness of the modern state, the increasing pluralization of culture, and powerful forces of secularization. Each of these three factors intensifies the need for added protection of religious freedom.

This is most obvious as one considers the massiveness of the modern state. The seemingly inexorable expansion of state activity into more and more sectors of life increases the number of areas in which state and religious activity can come into conflict, and where religious freedom protections are vital to protect individual and collective religious activity. This Hearing, previous hearings on the legislation in question, and all the hearings on the earlier Religious Liberty Protection Act, were replete with evidence of the many areas in which religious freedom is threatened if encroaching governmental action is not strictly scrutinized.

The increasing pluralism of contemporary society further compounds the potential friction points between religious activity and the state. Some, including Justice Scalia in the Smith decision, have cited this factor as an argument against accommodation of religious difference. But this runs counter to our historical experience. What the American experiment has shown, and shown stunningly (if not always perfectly), is that accommodation and toleration are much more effective in promoting social stability and flourishing than insistence on homogeneity and standardization. Increasing pluralism calls for more, not less religious freedom, because in addition to being right, respect for difference pays richer social dividends than wooden insistence on conformity.

Less obvious, perhaps, is the challenge posed by progressive secularization, which is particularly evident among our intellectual elites. Secularization is gradually dulling our sensitivities to the vital importance of religion and religious freedom to the strength of our republic. The importance of religion to society was obvious to the founders and to many of the greatest commentators on American life, such as Alexis de Tocqueville. But in secularized minds, the legitimate interests and claims of religion seem to fade in importance or to be marginalized when balanced against

1 James Madison, Memorial and Remonstrance Against Religious Assessments, reprinted in THE MIND OF THE FOUNDER: SOURCES OF THE POLITICAL THOUGHT OF JAMES MADISON, Marvin Meyers, ed. (rev. ed. 1981). The Memorial and Remonstrance is also reprinted as an appendix to Everson v. Board of Education, 330 U.S. 1, 63 (1947).

2 City of Boerne v. Flores, 117 S. Ct. 2157 (1997); Employment Division v. Smith, 494 U.S. 872 (1990).

the secular interests that are the focus of most governmental programs. Secular purposes look neutral, even when they have severe ramifications for religious life, whereas religious beliefs are suspect. What results is a kind of secular blindness, or at least myopia, that results in progressive underprotection of religious rights.

This trend is compounded by those thinkers about religious rights, including some at this hearing today, who advocate various versions of what might be called “secular reductionism.” Some contend that religious rights can simply be reduced to other more secular rights, such as freedom of speech, or association, or the right to equal protection. Others view religious freedom through a paradigm of equality, in which the idea of religious freedom is reduced to a mere non-discrimination norm. Too often, even the residual equality norm to which religious freedom is reduced grows insensitive to the value of religious difference. It is axiomatic in dealing with equality norms that substantive equality cannot be achieved without taking relevant differences into account. But secularized equalitarians are all too prone to forget that religion and the right to religious freedom constitute relevant differences that need to be taken into account in order to provide genuine substantive equality. Whatever one ultimately thinks about the balance of liberty and equality, it is fair to say that the greatness of our tradition in religious liberty will be impoverished if we do not understand that at its core it is about the protection of religious differences, religious pluralism, and religious conscience, and that sometimes these values are so strong that they even override otherwise relevant equality claims.

The Religious Liberty Protection Act helps remedy the foregoing problems by insisting, at least in those areas where Congress has continuing power after Boerne, that governmental incursions on religiously motivated conduct shall be strictly scrutinized. This does not mean that all state action and state norms thus scrutinized will be invalidated. No one has ever claimed that the right to engage in religiously motivated conduct is absolute. But it does assure that government officials cannot ride roughshod over religious claims, that they will need to bear the burden of proving that state action they implement complies with constitutional requirements, and that they need to consider carefully whether they can structure their programs in ways that are less burdensome to religious believers and organizations. Only when they have strong justification will they be allowed to override religious concerns. Insisting on such justification does not constitute an unfair privileging of religion. To the contrary, it simply recognizes the distinctive protections afforded by the First Amendment. Religious differences need to be taken into account to avoid unfair disadvantaging of individuals and groups bound by conscientious obligations. Requiring special sensitivity affirms the distinct and sensitive role that religion plays in social life; state action that fails to respect its distinctive character is unjust.

II. THE NEED FOR SPECIAL PROTECTION OF RELIGIOUS FREEDOM IN THE FIELD OF LAND

USE PLANN

When I was invited to appear at this Hearing, I was asked to focus in particular on religious freedom issues that arise in the area of land use. In the balance of my remarks, I will turn to this area. In my view, the problems encountered by religious organizations in the area of land use are symptomatic of a larger set of problems that religious organizations face in the modern regulatory state. Thus, I hope my remarks in what follows will be understood both as documentation of concerns in the land use area in particular and at the same time as a case study providing evidence more generally of the need for the Religious Liberty Protection Act.

Conflicts between free exercise of religion and land use date back to the earliest days of the American colonial period. One of the most famous early cases of religious persecution in America involves the expulsion of Anne Hutchinson from Massachusetts Bay. While the case obviously antedates modern land use statutes, many of the elements are familiar. Apparently, Ms. Hutchinson attracted the disfavor of the establishment because she started holding regular sessions in her home to discuss (and criticize) sermons held in the dominant church. She started a women's club in her home to discuss the sermon and the Bible each week. The attendance at these meetings increased with the controversy over the banishment of Roger Williams. Women were attracted to Anne and wanted to hear her opinions. The first formal action taken against her was a resolution of the assembly in 1637, which, as reported by her principal antagonist, John Winthrop, read as follows:

That though women might meet (some few together) to pray and edify one another; yet such an assembly, (as was then the practice in Boston), where sixty or more did meet every week, and one woman (in a prophetical way, by resolving questions of doctrine, and expounding the scripture) took upon her the

whole exercise, was agreed to be disorderly, and without rule.3 In a modern setting, planning authorities would have complained of inadequate parking, traffic problems, and other signs of “intensive” land use. A sanction as austere as formal banishment in seventeenth-century New England would have been an unlikely, but modern authorities might have proven just as adept at finding a neutral rubric (here, "disorderly conduct”) to exclude an unpopular religious activity.

The field of land use is particularly vital for the simple reason that religious activity, particularly the communal life of a religious group, necessarily involves using land. To some extent, this simply states the obvious, but some detail about the nature of religious land use in the United States may be helpful. The 1994 Report on the Survey of Religious Organizations at the National Level (the "Survey”), conducted by the Northwestern University Survey Laboratory and the DePaul Law School's Center for Church/State Studies (with which I am involved), surveyed approximately 300 religious denominations in the United States, including virtually all major denominations. It found that nearly all religious organizations hold religious gatherings at least once a week. Not surprisingly, 96% of the respondents indicated that religious gatherings are held at a single permanent location. 89% of those utilizing such structures own them outright; 11% of respondents indicated that structures are leased.5 In addition, "approximately two-thirds . engage in social service or welfare activities; over 80% are involved in education;6 nearly 60% provide recreation or social activities;7 85% are involved in communications;: one-third have retreat centers; and 40% have cemeteries.” 9 These figures do not reflect the number of religious associations that operate hospitals or other health care facilities, nor do they reflect a variety of other programs carried out by religious social services agencies. 54% of the respondents indicate that their national bodies own real property that is not used for worship purposes, as do the local units of 54% of the respondents. 10 Educational facilities and clergy housing are the most commonly held nonworship properties. 11 In addition, approximately one-fifth of the organizations surveyed indicate that they invest in real estate to raise funds. 12

For the most part, the government officials dealing with land use issues in the nearly 70,000 local government entities of the United States are tolerant and respectful of religious rights. Nonetheless, particularly when community opposition is strong, or when the fashionable orthodoxies of the planning or historic preservation worlds are challenged, problematic instances occur.

It is difficult to measure with precision the extent to which intentional religious discrimination plays a role in the problematic cases. As noted in In re American Friends of the Society of St. Pius v. Schwab, 417 N.Y.S.2d 991, 993 (N.Y. App. Div. 1979),

Human experience teaches us that public officials, when faced with pressure to bar church uses by those residing in a residential neighborhood, tend to avoid any appearance of an antireligious stance and temper their decision by carefully couching their grounds for refusal to permit such use in terms of traffic dangers, fire hazards and noise and disturbance, rather than on such crasser grounds as lessening of property values or loss of open space or entry of strangers into the neighborhood or undue crowding of the area. Under such circumstances it is necessary to most carefully scrutinize the reasons advanced for a denial to insure that they are real and not merely pretexts used to preclude the exercise of constitutionally protected privileges.

3 Quoted in CARL HOLLIDAY, WOMAN'S LIFE IN COLONIAL DAYS 40 (Boston: Cornhill Publishing Company, 1992).

4 My summary of the Survey draws on a summary prepared by Professor Angela Carmella in a chapter entitled “Land Use Regulation of Churches” that will appear in The Structure of American Churches: An Inquiry into the Impact of Legal Structures on Religious Freedom, which is to be published under the auspices of the DePaul Center for Church/State Studies. (I am an Associate Editor of this volume.)

5 Survey, MQ41.

6 44% of the organizations surveyed indicated owning one or more educational facilities. Survey, MQ14.

Of these, 54% provide recreation centers, and 80% have campgrounds. Survey, MQ58 D and G.

8 10% of these have a television station; 24% have a radio station.
10 Survey, MQ10, MQ42.
11 Nearly one-third reported owning clergy housing or other real estate.
12 Survey, MQ30.

'Id.

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